(concurring in part and dissenting in part).
I agree that the trial court’s holding that service of process was legally effected should be affirmed. I dissent from that part of the opinion which holds that appellant should now be given an opportunity to defend on the merits.
Of course, appellant had the right under Municipal Court Civil Rule 12(b) to first assert the defense of insufficiency of service of process, and have that disposed of before pleading to the merits. When that defense was overruled, appellant was entitled to an opportunity to defend on the merits, and that is the opportunity which the majority would now give him. But I think he has already had that opportunity and has failed to take advantage of it. Nowhere in the proceedings below or here has appellant asserted that he has a valid defense to the merits or indicated the nature of such defense.
When the trial court announced it would deny the motion to quash service and would grant judgment for failure to plead, appellant did not request an opportunity to plead. After judgment was entered against him, appellant never sought to have that judgment set aside and never tendered an answer to the merits. His sole position both here and below has been that the purported service of process on him was ineffectual.
To permit appellant to now go to trial on the merits will permit him to do indirectly what he could not have done directly. The order denying the motion to quash was not final and appealable. Appellant, however, permitted final judgment on the merits togo against him and then appealed from that judgment, raising only the question of service of process. If he is now permitted to go to trial on the merits he may again appeal from an adverse judgment, and we will be permitting piecemeal appeals. I would affirm the judgment.